About Resolution Resources

Emma-May Litchfield and Danielle Hutchinson are the co-founders and directors of the consulting firm Resolution Resources Australia, who provide dispute resolution services and solutions nationally and internationally. Together they work as dispute resolution advisors, providers and educators.

Resolution Resources provides a range of services in dispute resolution and conflict management, including:

• Mediation
• Facilitation
• Conflict Coaching
• Professional Development
• Research and Development of Dispute Systems
• Conflict Auditing
• Evidence-based practice and data-driven decision-making

For more information about Resolution Resources see: www.resolutionresources.com.au

Emma-May Litchfield and Danielle Hutchinson

Danielle Hutchinson is an Australian Lawyer with a special interest in dispute resolution within education settings. She is also an Academic at the University of Melbourne and RMIT University. In 2014 she received an award from the University of Melbourne in recognition of her work assisting university staff to resolve workplace disputes. At Melbourne she teaches the principles of evidence-based practice and collaborative practice across several Masters Programs within the Melbourne Graduate School of Education. Danielle has published in the areas of Assessment, the use of Large Scale Testing and the application of Psychometrics in the development of Professional Standards. Danielle is completing her PhD in Law at RMIT and teaches Commercial Law within the School of Business and Law. Danielle will be developing a new course for RMIT in International Commercial Law for undergraduate students who are taking their minor in law. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Danielle’s published research can be accessed here. Her PhD project investigates the identification of measures for the evaluation of ‘disputant voice’ in the selection of and participation in Dispute Resolution processes within a commercial context.

Emma-May Litchfield is an experienced mediator, facilitator and coach with a special interest in the Education and Community sectors. Her expertise lies in supporting parties to restore, develop and enhance the relationships that are vital for their professional or personal success. She is a member of the Resolution Institute and an NMAS accredited mediator. She was a coach of the University of New South Wales team for the 2015 International CDRC Mediation Competition in Vienna. She has been an assistant facilitator for undergraduate and post-graduate units in Principled Negotiation at the University of New South Wales. She has also been an adjudicator for the UNSW Principled Negotiation competition. At present, she sits on the both the Executive and Academic Committees of The Global Pound Conference Series 2016-17.

Emma-May has a Bachelor of Arts (Music Business) and
 Graduate Diploma of Education. She is soon to undertake her Masters by research work with the goal of building her academic profile in Dispute Resolution. Her Masters project will investigate the content and pedagogical practices of mediation trainers in NSW and Victoria. She is also working on a co-authored paper examining the inter-professional conversation between lawyers and dispute resolution professionals.

Links to Global Pound Conference

The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally, from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

The Global Pound Conference Series is arguably the biggest research project that has ever been undertaken in the history of Dispute Resolution. Emma-May and Danielle were integral in the development of the Core Questions, and will be actively involved in the analysis of the data, including the pioneering of innovative analysis techniques drawn from the field of psychometrics.

Emma-May and Danielle facilitated the Core Questions at the GPC Singapore, in March 2016.

ADR Research Network Participation

Emma-May and Danielle are both members of the Australian Dispute Resolution Research Network and are submitting abstracts to the ADRRN 2016 Roundtable. They look forward to participating in the annual network face to face gathering for the first time.

Don’t forget that expressions of interest to participate in our 2016 Roundtable are due by the end of May!

About Dalma

Dr Dalma R Demeter is an Assistant Professor in Law at the University of Canberra. She is also an international arbitrator, and a legal practitioner for almost twenty years. Dalma has a truly international background encompassing both civil law and common law education and practice, with law degrees from leading European and US universities and Australian qualifications in higher education. She is teaching and researching in international dispute resolution, arbitration, international sales and trade law, and mooting. She is also coaching and arbitrating for the Willem C. Vis International Commercial Arbitration Moot in both Hong Kong and Vienna. Her teaching is based on extensive research, and her teaching excellence has been recognised by several awards both locally and internationally. She is supervising doctoral research in dispute resolution and trade law, and she has recently initiated the establishment of a Graduate certificate in dispute resolution program at UC, expected to be launched in 2017.

Combining teaching with practice, Dalma is also an arbitrator in international commercial disputes and a partner at the Australasian Dispute Resolution Centre. She is a member of the Executive Committee of the UNCITRAL National Coordination Committee for Australia (UNCCA), of the Law Council of Australia International Division, of the ACT Law Society International Lawyers’ Committee, and of numerous arbitral institutions globally. She is also a contributor to law reform inquiries in private international law, alternative dispute resolution and international trade law. She is fluent in English, Hungarian and Romanian.

Dalma’s research

Dalma’s current research focuses on improving access to and efficiency in dispute resolution more broadly. Throughout 2016, Dalma is researching internationally on a number of different projects.

Global Pound Conference Series

Dalma serves on the Academic Review Committee for the Global Pound Conference Series. The Global Pound Conference Series is a large-scale project investigating the efficiency of adjudicative and non-adjudicative dispute resolution mechanisms globally from the perspective of the expectations and preferences of four major stakeholder groups: users, advisors, providers, and influencers (i.e. researchers and regulators). The project aims to initiate a global dialogue about dispute resolution in civil and commercial matters, with the data collected to serve as basis for future reform initiatives.

Legal harmonisation works of the UNCITRAL in Vienna. 

Dalma is contributing to the UNCITRAL Secretariat’s work on the development of a conciliation convention for the enforcement of settlement agreements. She is also providing input into the Secretariat’s recommendations with regard to the EU initiative towards establishing an investment court, impacting on the field of international arbitration more broadly.

Max Planck Institute for International, European, Regulatory and Procedural Law in Luxembourg

Dalma will be developing a future project to look into multicultural influences affecting choices and efficiency of dispute resolution processes. The project will serve as basis for developing a complex dispute profiling tool to assist parties in a case-by-case matching of a given dispute with the most suitable dispute resolution mechanism, as well as the characteristics and qualifications of the most suitable third party neutral. The scope of the proposed tool is for dispute resolution mechanisms to achieve the parties’ desired outcome with the least disruption, time and money spent on procedural arguments, improving access to justice through procedural efficiency.

UN Trade Law Commission in New York

Dalma was invited to present her access to justice initiatives to delegates of the UN Trade Law Commission as part of a Rule of Law panel organised in July 2016 in New York. The Commission works towards practical measures to facilitate access to justice in the commercial law context, in particular by micro-, small- and medium-sized enterprises.

Future focus

Dalma is interested in collaborations with other Australian or international researchers and educators of dispute resolution, and is happy to be contacted with questions about any of the projects she is currently involved in. Her preferred contact email is dalma.demeter@canberra.edu.au

About Frances

Frances Richards, BComm, LLM is the Principal of Frances Richards & Associates and an Adjunct Lecturer at the University of Notre Dame, Sydney Campus.

Frances is a solicitor and mediator specialising in dispute resolution in environmental planning law. She also teaches legal research and writing and is enrolled in the Graduate Certificate of University Teaching (GCUT) course at the University of Notre Dame Australia .

Frances first became interested in alternative dispute resolution when, after representing clients in the courts for many years, she attended a mediation course run by IAMA (now the Resolution Institute).  The potential of mediation for conflicts involving neighbours and local government was immediately apparent to her.

Frances’ research

Frances researches the use of mediation by local government, particularly conflicts between neighbours. In 2015 Frances brought her work in progress to the ADR Research Network Roundtable titled “Alternative Dispute Resolution(ADR): Opportunities for Councils“. She is soon to publish an article in the (2016) 21(2) Local Government Law Journal. Frances said about her experience at the ADR Research Network Forum:

I attended the ADR Research Network Roundtable in 2015 and was impressed by the knowledge of the other attendees and the collaborative and supportive nature of the Roundtable. I encourage other researchers to consider attending.

(In case you have missed it, we are currently calling for proposals for our 2016 forum).

Frances is currently researching the potential for the application of ADR to disputes over unpaid rates. She is encouraged by the research by Tania Sourdin into the use of ADR by the Australian Tax Office in disputes over taxes.

Sourdin, T. “Evaluating Alternative Dispute Resolution (ADR) in Disputes about Taxation” (2015) 34 (1) The Arbitrator and Mediator p19.

The research by Elize G Ufkes, Ellen Giebels, Sabine Offen and Karen Van der Zee into the effectiveness of mediation in neighbour to neighbour conflicts has also influenced Frances. She would like to apply their research methodology to neighbour conflicts in Australia.

Elize G Ufkes, Ellen Giebels, Sabine Offen, Karen Van der Zee “The effectiveness of a mediation program in symmetrical versus asymmetrical neighbour to neighbour conflicts” (2011) 23(4), International Journal of Conflict Management pp440 -457.

Frances sees potential for educating the community about alternative dispute resolution and for the use of technology in dispute resolution in the community. She would like to explore research in these areas in the future.

About John 

John Woodward is a PhD Candidate at UNSW. He was a solicitor in private practice as a litigation lawyer for 25 years. He is also an arbitrator for the Local Court of NSW and a mediator.  Daily contact with commercial and general litigation both as a legal representative and an arbitrator have brought him face to face in a very practical way with the anomalies of adversarialism and its shortcomings as a way to end disputes.  John became increasingly aware of the benefits of ADR and became an enthusiastic user of mediation, which his clients invariably found a much better process than the ordeal of having to go to court.  After having become accredited as a mediator, John became aware that what lawyers do in court-connected mediations “is a long way short of what real ADR is and has to offer.”  Reflecting on that led John to wonder whether lawyers are so culturally attuned to contest and rivalry that they are simply incapable of adjusting to the role of embracing the values necessary to assist clients in mediations and other ADR processes.  John suspects that court-connected mediation in NSW suffers from the same difficulties as those identified in other schemes.

John’s research

John’s research question is how lawyers are responding to mediation conducted in the shadow of the law, that is, where litigation is either under way or is an imminent threat to the disputing parties.  It seeks, through a qualitative method of semi structured interviews of lawyers and mediators, to establish how lawyers see themselves and their role in mediation.

• How do they identify as lawyers?
• What is their professional culture?
• Is it compatible with the values and beliefs of ADR?
• How do they reconcile the paradox of legality required by the courts with the freedom to negotiate offered by mediation?

If John’s research is communicated effectively to the legal profession, it has the potential to improve the quality of mediations in which lawyers participate (either as mediators or client representatives) and improve their understanding of dispute resolution.

The most serious challenge to the work so far has been confining the work to a manageable topic. John has realised that he could spend a life time and do many doctorates on topics related to court-connected dispute resolution. He also found some challenge in formulating a research framework within which to work.  Having the experience of many years of legal practice can be both beneficial as well as obstructive.  On one hand, the experience promotes a passion for the subject because he knows how much this work really matters and how it affects people’s lives at an intensely practical level. On the other hand, legal practice does not provide any assistance to become an academic researcher and acquiring those skills can be demanding.  John’s immediate challenge now is to obtain ethics approval, a task which he has almost completed.

John’s publications so far

John shared his work with the ADR Research Network Roundtable in 2015, with his work in progress titled “The Effect of Legal Professional Culture on the Integrity of Court-connected ADR”. John plans to participate in the 2016 ADRRN Roundtable.

He has also published three journal articles over the past few years.

• John Woodward, “Court-connected dispute resolution: whose interests are being served?” (2014) 25 Australasian Dispute Resolution Journal 159
• John Woodward, “Tipping the Scales: to what extent does the presence of power imbalances detract from the efficacy of principled negotiation?” (2015) 26 Australasian Dispute Resolution Journal 86,
• John Woodward, “Encouraging dialogue between large and diverse groups: the emerging field of facilitation” (2016) 27 Australasian Dispute Resolution Journal 58 (which includes a case study of the topical issue of gun control in the US).

John’s future plans

When asked where he would like to take his work post-PhD, John reflected that one of the great things about doing a PhD is that you are already there before you finish.  He really enjoys the research – so much so that he thinks he would like to continue researching.  He also enjoys writing so is hopeful that some of his work may find its way into a book at some time in the future.

This post is about the value of sharing research “failures” as a core part of the dispute resolution community of practice.

Invisibility of failure in academic culture

In the competitive environment of academia, there is an unrealistic focus upon extrinsic measures of success such as tenure, promotion, publication, funding grants or awards. This belies the fact that in order to build expertise, knowledge, and excellence, many failed or abandoned endeavours will form part of our journey. The veneer of flawless achievement paints an unrealistic and unhelpful picture for emerging researchers and others who have much to offer should they be nurtured in the research environment. Some academics have published “CVs of failures” as a way of addressing the unrealistic portrayal of academic life. For example, Melanie Stefan from the University of Edinburgh whose idea was adopted by Professor Johannes Haushofer of Princeton University.

“Publish or perish” can be a preoccupation in the life of an academic researcher, with publication of research in peer reviewed journals being valued above other means of distributing the knowledge built through research endeavour. It is recognised that journals have a bias towards publication of positive research results and non-publication of null results. Recent attention has been paid to the fact that this trend skews the knowledge attained in the field and calls have been made to publish negative results. The validity of social science research with low response rates is often questioned, and also makes it difficult for such work to be published. In research involving questionnaires or surveys, “nonresponse bias” occurs where the missing data from potential participants who chose not to participate means that the data is skewed, and this is also a cause of criticism.

Some steps have been taken within research communities to address problems with publication bias. Journals have been created that focus exclusively on publishing negative, unexpected or controversial research results. Some researchers have sought to test how much of a problem low response rates are, as a small sample is not necessarily biased.

The value of methodological “failures”

An almost exclusive focus on publishing “successful” research means that only half (or perhaps even less) of the knowledge generated by the research community is made available. The result is that research methods that did not “succeed”, because the results were unexpected or the research method did not attract the response rates that it was designed to attract, are kept in the shadows. Future researchers miss out on the benefit of being informed to avoid repeating design faults. Sometimes research approaches that work in one setting do not translate well to another setting, and publishing details of failures enables challenges to be overcome. Sometimes disappointing participation rates are discussed in a defensive way within publications, where the author tries to justify the low response rather than sharing their reflections on how they might have done their research differently. Such reflection would be a way of supporting improved research design.

Like all aspects of research, methodologies are best designed with a background knowledge of existing literature. Many of the challenges of research can be managed by following advice (for example how to minimise nonresponse error) and by reading literature specifically related to research in a particular disciplinary area. For example, NADRAC’s ADR Research: a resource paper and Daniel Druckman’s Doing Research: Methods of Inquiry for Conflict Analysis are two useful resources in the dispute resolution field (but of course these are only two of many).

“Hot Air Balloon Shadow” By Dixonsej (Own work) [Public domain], via Wikimedia Commons

Bringing what didn’t work in dispute resolution research out of the shadow

I argue that it would be enormously beneficial to our field if we joined forces to gather data about the research projects that we abandoned, the research methods that failed, and the results that we haven’t published because we don’t think they tell a “good enough” story. This post is an invitation to share your stories.

To demonstrate the value of this proposal, I will share one of my own stories of research failure. It has been previously published as Appendix A “Lessons learnt from the original research design” of my PhD Thesis. Back in 2004 I embarked on a research planning process, and my first research design was to invite lawyers and their clients to participate in 20 minute telephone surveys about their experiences in a particular matter at mediation in the Supreme Court of Tasmania. I planned telephone surveys because I believed that asking for a short period of time, without needing to meet face to face, would be most attractive to potential participants. I was very interested to gather data about both lawyer and client perspectives, and my overall aim at the time was to conduct a programme evaluation.

An obvious challenge was identifying who should be invited to participate in the research. A letter was sent by the then Chief Justice to all Tasmanian legal practitioners informing them of the study, emphasising the court’s support, and encouraging them to participate. Information sheets and consent forms were distributed to lawyers by the Court by mailing them with the Notice of Mediation. The human research ethics committee required that the clients be approached through their lawyers. Lawyers were asked in a covering letter to forward their clients’ information sheet, consent form and a copy of the survey of legal practitioners to their client prior to the mediation. Consent forms could be handed to the mediator at the conclusion of the mediation or posted to the researcher, and mediators had spare copies of all materials on hand in the mediations. I met with each mediator to explain my research, and asked them to mention the research at the mediation and extend an invitation to participate. They all agreed to do so, but later reported that they frequently either forgot or failed to find an appropriate moment to raise the matter during the emotional upheaval during or the fatigue at the conclusion of mediation. Memoranda and articles in the Law Society’s magazine from both myself and the Registrar were published to try to boost participation rates. Ultimately I abandoned the research method as only 27 signed consent forms were received, representing less than 2% of the pool of potential participants over the relevant time period.

I redesigned my research aims and method. Information sheets and consent forms were emailed to potential participants, who were identified by the Registrar as being lawyers who practised in civil matters at the Court. I gathered data through face to face interviews of legal practitioners lasting around one hour. Interviews related to their mediation practice in the Supreme Court of Tasmania generally, not specific matters.

I concluded each interview with a question about whether the practitioner remembered receiving the documents about my original study and what they had done in response. The overwhelmingly common response was that the paperwork had gone straight into the rubbish bin and had not been sent to the client. Participation was a low priority compared to activities that would advance the client’s case. There was a reluctance from many lawyers to forward the material to their client. There was also some irritation at the volume of invitations that individual lawyers received. The sensitive and confidential nature of the information sought was also a deterrent to participation.

What I learnt from my “failed” research method included the following:

• Relying upon third parties to distribute invitations to participate in research can be risky, even when they are supportive of the research project. I might have been better to attend the court and approach potential participants myself (see Jill Howieson’s Local Court Mediation study).
• Mediation can be a stressful and emotionally draining process, and inviting participants to engage in research immediately after their mediation event is not optimal. Similarly, mediators may find it difficult to invite participation in research during a mediation event, as this distracts participants from their mediation experience.
• Lawyers are very protective of their clients’ wellbeing and can be reluctant to ask their clients to participate in research activity that (a) does not advance their case and/or (b) invites them to reflect upon their experiences or satisfaction with the service they have received.
• Where data is sought about individual cases rather than general experience, the frequency with which individuals will be invited to participate in the research should be considered, as multiple approaches can discourage engagement in research.
• Many professionals are overwhelmed with paperwork and telephone calls during their busy practice. They might be more receptive to a face to face interaction with another human being than participating in research by completing a form or telephone survey. They can be surprisingly generous with their time.
• Where possible, providing information about the research by electronic means such as attachments to an email and/or a link to a website (if ethics approval can be obtained for this approach) is likely to be less overwhelming for potential participants than hard copies.

How you can tell your story

I invite other dispute resolution researchers to share your stories of “failed” research methods in the comments section below. Please include:

• Some detail of the research design;
• In what way your research method “failed” to attract the response rate or results you wanted or expected, or why you abandoned it;
• What you learnt from the process and what lessons you want to share with current and future researchers.

I look forward to the valuable contribution that this sharing can make to our field.

From time to time people ask how they can become members of the Australian Dispute Resolution Research Network.

FUTURE REVIEW

We are an evolving network and at the 2016 Round Table in Hobart, time will be allocated to review our current approach and make some decisions about membership and organisational structure.

CURRENT APPROACH TO MEMBERSHIP

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog at adrresearch.net. This is our primary means of communication. Although we do sometimes email people who have attended face to face meetings, we prefer to communicate via the blog so that all interested people can view it. Therefore it’s an “opt in” membership where you control whether you’re kept informed of network activity.

• Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address.
• Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.
• You are welcome to make a guest blog post and/or request to be added as a regular contributor who can post directly. These requests can be directed to our blog editor Becky Batagol

At each annual face to face gathering, some primary responsibilities are allocated to network members for the following year. The current responsibilities are:

• Chairs – Kathy Douglas and Jonathan Crowe
• Blog Editor – Becky Batagol
• Round Table Organisers – Olivia Rundle, Kate Curnow and Sue Douglas

We hope that this clarifies our approach to membership.

Please don’t forget that abstract proposals for the 2016 Round Table are due by the end of May!

Professor Jaswald W Salacuse has published an interesting article titled “The Effect of Advice on Negotiations: How Advisors Influence What Negotiators Do” in the April 2016 edition of the Negotiation Journal. There are some interesting observations made in the article that have relevance for researchers who are analysing negotiations.

Professor Salacuse observes that:

• Theoretical models of negotiation often overlook the significant role played by people who advise negotiators;
• Advisors might include family, friends, colleagues or professionals (including, but not limited to lawyers). They may or may not be invited or appointed to give advice to the negotiator to help them decide how to deal with their problem; and
• Advisors may give advice earnestly or casually, and either kind of advice can have dramatic consequences for the way that a dispute is managed.

He recommends that when examining a negotiation, as a reflective activity or a research analysis, the role and impact of advisors on the negotiation should be routinely and systematically incorporated into negotiation planning and/or the method of analysis. Negotiators should analyse their relationship with their own advisors as well as those of the other negotiating parties. Professor Salacuse’s use of role theory also provides a framework that professional advisors such as lawyers may find useful in articulating their advisory role and style to clients. Role theory differentiates between role prescriptions (external expectations of the advisor’s role), role performance (the advisor’s actual behaviour) and role conceptions (the advisor’s perspective of how they ought to perform their role). For researchers, failing to investigate the identity and influence of advisors over a negotiation process will produce an imperfect picture. Salacuse recommends that researchers ask questions that explore: the content of advice received in relation to a negotiation, the identity of advisors and their relationship with negotiators and other participants, relationship structures, roles played by negotiators and advisors (particularly prescription and performance), resources that advisors brought to the negotiation table, means of influence employed, nature of interactions during the negotiation, and the advisor’s style.

Some of the factors that will vary include the following:

• The degree of dependence upon the advisor’s expert “repeat player” knowledge (high dependence can make it difficult to reject advice);
• The importance of role prescription (a non-professional advisor will be less constrained by this than a professional advisor appointed specifically for the purpose of giving advice);
• Whether advice is sought because of the advisor’s expertise in substance or process, or to validate a fact, policy or intention;
• Whether an advisor’s participation in a negotiation event is “ornamental” (in the sense that they are there because of their reputational capital) either wholly or in part;
• Whether an advisor’s conduct and influence over the negotiation creates a separation between the negotiated outcome and the negotiator (which can bring the authenticity of the agreement into doubt);
• Whether the negotiator seeks advice primarily to validate their own opinion (for example, a family member or friend’s validating advice may be sought because the negotiator wants them to affirm their allegiance rather than form an independent critical opinion about the subject matter of the advice); and
• The degree of confidence that the negotiator has in the advisor’s technical competence, integrity, and loyalty, which will be strongly linked with the strength of the relationship between advisor and negotiator.

Professor Salacuse describes three structural models of the relationship between negotiator and advisor, that have some alignment with my (Dr Rundle’s) models of lawyer participation in mediation. He talks about the advisor as director who “tends to take control of the negotiating process, directing the negotiator on how to act to achieve success in the negotiation” (spokesperson). The advisor as servant responds to the client’s demands and “the client fully controls the negotiation and may limit the advisor’s participation to specific questions and issues” (any of the absent advisor, advisor observer or expert advisor). The advisor as partner describes the advisors and their clients conducting a negotiation as partners, where “the essence of any partnership is co-ownership and joint participation” (collaborative participant). Of the EU advisors surveyed for Salacuse’s research, 80% indicated a clear preference for a partnership relationship with the people they advised. Kathy Douglas and Becky Batagol’s research in VCAT mediation has shown some support for the collaborative approach to legal advice giving as has Allie Bailey’s research in Roundtable dispute management at Victorian Legal Aid. However, this model is neither traditional nor typical of lawyer client relationships generally.

The article canvasses a broad range of considerations that cannot be ignored if the dynamics of particular negotiations are to be understood properly. These influential factors need to be considered carefully when educating advisors (such as lawyers) and negotiators (anyone) about their choices and behaviours in negotiation settings. They provide a useful framework for reflection for professional advisors.

One final observation from my reading of the article is that Professor Salacuse’s research method was to administer a questionnaire to a group of advisors who he was training, which invited them to assess their own advising and communication style. This self-report of “typical” practice may be useful in gathering data about advisor’s role conceptions, to supplement other data about role prescriptions and/or behaviour. It might be a useful research tool for researchers who wish to learn more about lawyers’ perspectives of their role and practice in advising clients in relation to their disputes. The survey instrument is annexed to the article. I am interested in other researcher’s views about it (but of course all constructive comments on and contributions to this blog are always warmly welcomed).

A dispute about the extent to which an employer can sanction an employee for the content of their personal social media posts made outside work hours has been settled on the eve of hearing in the Federal Court. This provides a useful opportunity to reflect upon two matters:

• The impact of dispute settlement on the development and clarification of the law; and
• The persistence of last minute settlement in litigated matters.

Brave and innovative thinking is needed to address both of these issues.

Background

(Background sourced from: New Matilda, Sydney Morning Herald, Conversation and Corrs blog)

On ANZAC Day 25th April 2015 Scott McIntyre published four tweets that expressed his personal opinions about ANZAC soldiers’ war crimes during WW2. The tweets were noticed by some commentators, and there was wide condemnation including from federal government ministers and Mr McIntyre’s employer, SBS, who terminated his employment 12 hours after his tweets. One month later Scott McIntyre lodged an unfair dismissal claim with Fair Work Australia. His employer argued that McIntyre’s employment had been terminated because he had breached the network’s social media policy by refusing (upon request by his employer) to “delete a series of inflammatory tweets and publicly apologise.” If the matter had gone to hearing, as it was scheduled to on 11 April 2016, some interesting legal questions about whether or not the termination was lawful were likely to be raised by McIntyre’s legal team.

Originally, McIntyre’s argument was that SBS had discriminated against him on the basis of his political opinion contrary to s 351 of the Fair Work Act 2009 (Cth). Following conciliation proceedings at the Fair Work Commission in July 2015, McIntyre abandoned his s 351 claim, because it was recognised that it could not succeed. (Without going into detail here, essentially, the required basis for the claim under NSW law did not exist). It should be noted that the exposure of the flaw in the claim in itself was a useful outcome of the conciliation conference. Efficiency and justice was promoted by serious consideration of the claim by both parties and an exchange of views about its legal basis.

McIntyre decided to pursue an alternative claim for unlawful termination under s 773 of the Fair Work Act 2009 (Cth). An application was lodged and leave sought to pursue this alternative cause of action out of time. SBS resisted this application, but in October 2015 the Fair Work Commission  rejected SBS’s arguments and determined that McIntyre could pursue his new claim. The matter commenced in the Federal Court, there was at least one court event in December 2015, and it was set down for a three day hearing in April 2016. The parties settled the day before the scheduled start date.

Significant Legal Questions

McIntyre’s lawyer Josh Bornstein tweeted on the day after the settlement “It has been a privilege to have represented @mcintinhos & settling his important case about free speech.” A determination of McIntyre’s claim would have provided better guidance to employers and employees about the boundaries of appropriate social media activity and employer responses to employee’s private expressions of their political views. In May 2015, Professor Joellen Riley noted that McIntyre’s case would test the applicability of old law in the age of social media:

Once upon a time, long, long ago, and before social media all but obliterated any boundary between public and private lives, a judge in Australia said (in Australian Tramways’ Employees Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35) that a person may wear, worship or believe whatever one chooses, in matters not affecting work.

The boundary between the employment and private sphere has broken down almost irretrievably for most workers, particularly in fields such as journalism, where employees are expected to engage on social media and to build a public profile that will benefit their employer. Most organisations have social media policies, and the case would have tested the interaction between the employee’s freedom of political expression and such policies.

For dispute resolution practitioners and scholars, the settlement of what would have been an important case reminds us of the public function of our judicial system in providing clarity to citizens about acceptable standards of behaviour.

The terms of the settlement between McIntyre and SBS are private. The questions that would have been determined by the court in the case remain arguable, meaning that other employers and employees are no better placed to predict how the courts would view their actions.

The concern that settlement has an impact upon the development of the law has been voiced throughout the development of the modern dispute resolution field (notably, Owen Fiss in his 1984 article “Against Settlement”). Most matters have always settled, because individuals seek to avoid the risks and costs of engaging in the entire formal legal process. Dominique Allen has noted that discrimination law is a relatively new area of law, largely statute based, and relies upon the judiciary to give guidance about the meaning and application of the statutory provisions, which means that confidential settlements pose a problem in delivering the behavioural guidance that the law is intended to provide (Dominique Allen, “Against Settlement? Owen Fiss, ADR and Australian Discrimination Law” (2009) 10(4) International Journal of Discrimination and the Law 191, 199). Perhaps more attention could be paid to the question of whether there are alternative ways of clarifying the law and delivering justice. Consideration of ways to achieve the benefits of judicial determination, while avoiding the costs to the individuals whose dispute raises important legal questions, may be long overdue. Sometimes dispute resolvers find themselves advocating for dispute resolution as the better process than trial, and engaging in advocacy against trial. But a less adversarial approach to the conversation can support being “for settlement” and “for litigation” (see Michael Moffitt, “Three Things to be Against (‘Settlement’ not included)” (2009) 78(3) Fordham Law Review 1203). There is a need for the litigation process to be critically examined and for means of improvement to be identified. Perhaps dispute resolution scholars, with a penchant for radical non-attached and creative thinking, have something to offer in the innovative justice space?

Last minute settlement

The fact that McIntyre and SBS settled his claim is unsurprising, given the personal costs and risks involved. It is less clear why the settlement was reached at the last minute. It did not occur until after considerable expense had already been incurred by the parties and all of the preparation for the hearing was complete. In that sense, the cost savings to the individual parties were not as great as they might have been had serious settlement negotiations resolved the matter earlier.

As an outsider, it is impossible to know what kinds of negotiation events occurred between the Fair Work Commission’s hearing on 12 October 2015, which confirmed that McIntyre could pursue his claim, and 11 April 2016, when it was announced that the matter had settled. I can hazard a guess that the legal practitioners and their clients may not have had serious and comprehensive conversations about the risks, costs and complexities of going ahead with the hearing until late in the process. For Mr McIntyre, succeeding at the hearing would have brought a considerable sense of justice, but the risk of losing would place him at risk of an adverse costs order. A loss for SBS at the hearing would have included having the details of their decision making in dismissing McIntyre played out in public, and used as an example of what not to do when dismissing employees. The risks and costs could have been understood, considered, and weighed well before the eve of trial. It is true that imminent time pressure does present a part of the persuasion to settle. However, there is a need for innovative thinking about how to create a culture of serious attention to settlement before parties have had significant costs incurred at their expense.

No doubt the time pressures of operating a busy litigation practice mean that only the most urgent of matters receive attention from litigation lawyers. This is why court-connected mediation has succeeded by creating a negotiation event earlier in the litigation process that makes attention to settlement more “urgent” than it would otherwise be. Mediation has not increased the rate of settlement, but it has created an incentive for earlier settlement of cases destined to settle on the steps of court. At the end of the day, the people who benefit most from last minute settlement (as opposed to settlement at an appropriate earlier stage), are lawyers, and this is the great conflict of interest inherent in litigation practice. Perhaps there are more innovations that could be introduced to create incentives for further change to culture and practice? 

The Australian Dispute Resolution Research Network is pleased to be hosting its fifth annual research round table in 2016. The Round Table will be held from Friday afternoon 9th until midday Sunday 11th December 2016 at the University of Tasmania in Hobart. This announcement invites researchers to submit proposals for papers to be included in the Round Table programme. The ADRRN Round Table Call for Papers 2016 contains more detail.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposal will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the round table discussions. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

• Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
• The round table will include a spread of participants across stages of career; and
• A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Deadline for paper proposals:   30 May 2016

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session. Participation is on a self-funded basis.

For further information, please:

• Read the full Call for Papers ADRRN Round Table Call for Papers 2016
• Contact the conference convenors Olivia Rundle, Sue Douglas and Kate Curnow via adrresearchnetwork@gmail.com (monitored twice weekly)

Background

On 9^th March 2016, the New Matilda published a full transcript of Queen Victoria Women’s Centre’s annual International Women’s Day address titled “Looking Past White Australia and White Feminism.” The author of the keynote was Celeste Liddle, who through her Facebook public profile page Black Feminist Ranter posted a link to the New Matilda article. On 10^th March Celeste tweeted “been locked out of @facebook because someone reported my @newmatilda transcript for nudity as it contained a pic of desert women painted up”. The photograph was published by New Matilda and showed two aboriginal women engaging in ceremony, wearing only paint over their chests, and this nudity had been deemed to breach Facebook’s Community Standards. The Black Feminist Ranter timeline demonstrates that outrage ensued, Facebook users reposted the apparently offending article, some were blocked themselves, Black Feminist Ranter was repeatedly blocked for posts about the blocking, and eventually the matter was featured in the mainstream media (including ABC, Sydney Morning Herald, Public Radio International and Daily Life). A change.org petition received considerable support.

Flaws in Facebook’s dispute management system have been exposed by the way the complaints about the image were handled. Key failings include lack of procedural fairness or due process, and inconsistency. There is a clear need for Facebook to dramatically overhaul the way that its complaints handling system operates, as the current system facilitates malicious targeting by “trolls” and allows legitimate and valuable voices (in this case feminist and indigenous) to be silenced. This is not consistent with the standards expected by the global community and therefore Facebook’s means of decision making according to global “community standards” are failing. There is a history of Facebook responding constructively to community objection to its censorship policies, which suggests that a user led campaign may succeed in pressuring Facebook to change its processes, despite the enormous power imbalance between it and users.

Community Standards

Facebook is populated by a diverse global community and acknowledges the challenge of establishing rules about the nature of content that is allowed to be posted on its platform. Users are offered advice about how to avoid content that they don’t like. However, Facebook (along with other social networking sites) is prepared to and frequently does censor content posted to its platform. Facebook relies upon peer to peer reporting of inappropriate content and assesses that content against its Community Standards, to which all users have agreed to comply when they committed to the Terms of Use. Safety, respect, cultural diversity and self-control are principles that Facebook claims are its goals in striking the right balance between self-expression and promoting a welcome and safe environment for all users. The standards and processes of censorship adopted by Facebook have been described as “opaque” and it has been suggested that this may be a deliberate obfuscation, to avoid accountability. This is despite Facebook’s claimed commitment to transparency.

It has been observed that Facebook’s approach to nudity reflects “odd prejudices about sex.” Nudity is a separate category of banned content in addition to pornographic imagery (Term 3(7)). The focus of nudity is not upon the sexualised nature of the image, but the body part exposed. Prohibited body parts include: genitals, fully exposed buttocks, female nipples. Male nipples are not prohibited from display. There are precedents of images of women with painted nipples being determined not to breach the Community Standards (including recent posts by Kim Kardashian and of a naked women riding a bicycle with a dildo strapped to the handlebars).

Facebook’s revision of its Community Standards

Facebook recognises that its processes of applying Community Standards about nudity “can sometimes be more blunt than we would like and restrict content shared for legitimate purposes” and claims to be “always working to get better at evaluating this content and enforcing our standards.” In March 2015 three kinds of image were added to a list of exceptions to the prohibition of nudity: breastfeeding women, post-mastectomy scarring, and photographs of paintings, sculptures and other art depicting nude figures. The revision of the Community Standards was a response to widespread campaigns protesting against and petitioning Facebook to change its banning of these three categories of image. The banning of the female nipple has been the subject of much consternation, with acceptable male nipple pasties circulated to facilitate covering the apparently offensive female nipple on user’s images prior to posting.

Another example of the willingness of Facebook to change its systems to better cater to users is the introduction in 2012 of an opportunity to resolve content objections without the need for intervention by Facebook’s moderators. One of the options offered when a person objects to a post, in addition to making a report, hiding it from their person view or “unfriending” the person who made it, is to select a box and send an anonymous message explaining “Hey, I don’t like this photo. Please remove it.” The complainer can indicate that they object to the photograph for reasons such as “it makes me sad”, “it’s embarrassing” or “it’s a bad photo of me”. More than 8 million people per week use these social resolution tools to resolve their differences about content posted on Facebook. More than half of those asked by another user to remove a photograph do so, and at least 75% reply. Often the acknowledgement is enough for the complainer to take no further action in relation to the post, and often the person who posted the content was not intending to cause offence. This social resolution tool could be mirrored in the process that is applied when a moderator becomes involved in decision making. The advantages of giving users a voice in the decision making process are obvious.

Facebook’s Dispute Handling System

As noted above, peer to peer reporting is the means by which Facebook identifies content that ought to be censored and other breaches of the Community Standards. According to Monika Bickert, Facebook’s head of policy management, more than 1 million reports of violations of the Community Standards are filed every day. Facebook claims, under the Terms of Use 5(2), absolute discretion to decide whether or not content should be removed.

The Dispute System Design is explained in the “Reporting Guide.” Although Facebook uses automated learning systems to identify content that has been previously removed, the main engine of the reporting system is outsourced human workers who review the content that has been reported, according to a manual. They determine whether the content should be deleted, allowed, or the report should be “escalated” to Facebook employees for determination.

Where content is deemed not to breach the community standards, the reporter will receive a message through Facebook notifying them that it “doesn’t violate the Facebook Terms” and referring them to the guide to avoiding content that they don’t like.

Where content is deemed to breach the community standards, the reporter will receive a notification of the decision and the person who posted the content will receive a notice that the content had been removed. Where a person has previously had a report upheld and content removed, Facebook may initiate a suspension or termination of the person’s account (Term 14). For Celeste Liddle the sequence of punishments were: removal of content, a 24 hour ban, a 3 day ban, and a 7 day ban. Although the Daily Mail and ABC Facebook pages were not blocked by Facebook for posting two of the original articles, many other users had the same content removed (including New Matilda) or were blocked from access to Facebook.

The reporting guide reveals that the person against whom a report is made has no voice in the decision making process about whether or not their content breaches the Community Standards. There is only one reference to “reportee can appeal a decision in some cases”, and that comes after the person has been blocked (as opposed to their content removed). There is no transparency about which cases and upon what basis. Furthermore, as Celeste Liddle found, it is incredibly difficult to communicate with Facebook once a user has been blocked from access to the platform.

There is no dispute resolution clause in the Terms of Use apart from a reference to choice of law and jurisdiction in California (Term 15(1)). Unlike most internet organisations, Facebook has no online dispute resolution process to facilitate the resolution of disputes between its users nor between itself and its users – other than the opaque and one-sided reporting system.

Malicious reporting happens, and the failure of Facebook’s dispute handling system to account for such behaviour is a flaw that perpetuates unfair treatment of some users. Malicious reporting occurs where reports are made against a person repetitively, as a way of triggering a removal of content and then a ban of the person reported against. Celeste Liddle maintains that this is what occurred to her, with four separate posts being the subject of reports over only one week. Once an initial report was upheld, she became a “repeat offender” in the Facebook moderating system, and therefore greater penalties were imposed for subsequent reports.

Power analysis

One problem with Facebook’s apparently unfettered power over censorship of content is the danger (illustrated by the Celeste Liddle example) that provocative voices that challenge the status quo will be silenced. Gil’ad Idisis has observed that:

“There is no reason to trust that commercial entities will want to, or even know how to, make a balanced, good faith determination of whether content is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”…Commercial companies are inherently biased, primarily focusing on maximising profits, which is generally achieved by reaching the broadest client base and by keeping content as consensual and non-provocative as possible” (at 162).

Changing the way that Facebook deals with reports will only occur if the organisation is motivated to make that change. This must be achieved within an environment of considerable power imbalance between Facebook and other parties, and it’s extremely strong market position.

There is a huge power imbalance between Facebook and its individual users, who need Facebook much more than Facebook needs them. Facebook suffers no financial detriment by blocking a user. Users can choose not to use Facebook, but it has become a core part of many personal, social, commercial and political activities. Unlike other social network platforms, Facebook’s existence is not threatened by poor dispute handling practices, as its customers are effectively “locked in” to using the platform to maintain connection with their network. The benefit of Facebook for users is the access to the network of other users with whom content is shared. The Facebook platform enables people to bring content to the people who are likely to be interested in it, and for independent content producers such as Celeste Liddle, this is a means of maintaining their livelihood.

The power of Facebook has caused some argument that it wields power and influence comparable to a nation state, without being bound by the same international laws that seek to moderate state behaviour. Some people have argued for governmental regulation or the creation of an international body capable of regulating the behaviour of organisations such as Facebook. Both of these proposals are cumbersome, expensive, and arguably unrealistic.

There are significant barriers to judicial processes to pursue a claim against Facebook. Although Facebook is based in the USA, and users agree to the choice of Californian law when they sign up, at least 80% of users are located outside the USA. There are complex practical difficulties in pursuing formal legal action against or imposing governmental regulation of Facebook across jurisdictional borders and between different systems of law. Demonstrating a financial loss may also be difficult, which restricts the remedies available even if a wrong can be demonstrated. Time is always a significant barrier to the efficacy of formal justice processes, with access to faster decision making a key attraction of other dispute resolution processes.

Proposals

One of the most powerful ways of moderating the behaviour of social networking providers is public opinion (as demonstrated by previous alterations to Community Standards regarding nudity and reversal of decisions not to remove pro-rape content). Users (en masse) and shareholders are possibly the most well placed to influence the revision of processes and the Community Standards. There ought to be a clear, transparent and constructive process that gives voice to all users, not just those who make a report. A dialogue with the community of users is absent from Facebook’s content moderation process, and to date it has primarily occurred through user petitions. Users could engage with Facebook to demand that the processes exhibit better transparency and fairness, and that a review of the nudity standards be conducted so that outcomes are more consistent with the views of the community. Cultural sensitivity should be supported through Facebook’s process of content moderation. These substantive issues are not considered further here.

The principles of dispute system design maintain that disputes can be handled systemically rather than on an ad hoc basis, and that a systemic approach leads to more effective dispute handling and prevention of disputes arising (because the rules are made clear). There are systemic failures in Facebook’s current system.

It is a basic tenet of procedural fairness that a person affected by a decision ought to be given an opportunity to respond to the case against them. This could be achieved by a transparent facility for users against whom a report is made to make a case to Facebook or lodge a complaint about a decision that has been made to remove their content. As a private organisation, the question of whether or not Facebook owes its users procedural fairness would be determined according to it’s  private rules of corporate structure and/or contract. Again, public demand that users be accorded procedural fairness is not unreasonable.

Key changes that could be made to Facebook’s dispute handling system to reflect good dispute system design include the following:

1. Giving users against who a report has been made an opportunity to respond to the report before a decision is made. This could be modelled on the peer to peer response that is already in place – the person whose content has been objected to could be sent a message informing them that the content had been reported and the reason selected, and a checklist of responses could be made available to assist the decision maker. The list might include options such as “I do not object to the content being removed” and “I disagree that the content breaches the Community Standards.”
2. Creating a transparent online internal review process after decisions have been made. This could occur after the person is notified that their content has been removed. Again, a checklist approach could be adopted, with options such as “I understand now that the content breached the Community Standards”, “I disagree that the content breaches the Community Standards”, and “I want to appeal the decision to remove my content.” Checking the last option could trigger an online conversation with a Facebook moderator and the user about the content, with a view to resolving whether the Community Standards had been misapplied. Where on consideration, it was determined that the censorship was mistaken or unfair, the record of the report against the user should be deleted from their account, to prevent aggravated consequences of malicious reporting in the future.
3. Referring appeals from censorship decisions to an external online dispute resolution provider. Any external appeals process needs to be quick and cost effective (particularly as most users do not have a financial relationship with Facebook). Online dispute resolution is an established process with many providers available in the market.
4. Before Facebook triggers a suspension of a user’s account, the user should be given an opportunity to engage online with a Facebook representative to clarify the reasons for the blocking and make arguments against the decision (such as alerting Facebook to a pattern of malicious reporting). This is important because currently when a person is blocked, it is extremely difficult for them to communicate with Facebook outside the platform.
5. Malicious reporting could be dealt with by Facebook registering complaints of malicious reporting (in the same way that it does users whose content has been reported and removed) and applying sanctions against such reporters. Again, before imposing a sanction, that user ought to be given an opportunity to make arguments against the decision to sanction them. Arguments might be made on the basis that their motivations for reporting were genuine because they believed that the content breached the Community Standards. Such claims could be reviewed against records of outcomes of reports.

In conclusion, there are substantial problems with Facebook’s dispute handling system. The most effective way to bring about a change to the system would be to convince Facebook that its own interests would be served by the change. Public outcry has been effective in the past and may be effective in this case. The lack of transparency, arbitrariness and inconsistency of outcomes in the current approach all contradict Facebook’s own statements of principle, mission and standards.